Debating HCR’s Constitutionality, Ctd

As the 11th Circuit Court of Appeals declares the mandate unconstitutional, this Dish thread continues. A reader writes:

Ilya Somin says that failure to purchase health insurance is like "virtually any failure to engage in activities, especially economic transactions…. This is true of failures to purchase broccoli." That is patently absurd. Unless a person without insurance dies without ever needing medical care, that person will need to avail him or herself of the health care system at some point. Life is not at stake in the purchase of broccoli. Any person can go an entire lifetime without purchasing broccoli, and no one will be required to buy that person broccoli in order to save that person's life.

Insurance is different than a market transaction based on personal desires. No one chooses to need health care. It is something that happens to a person. If it happens to someone who has had the opportunity to purchase health care (even when offered a government subsidy) but has chosen not to, that person's choice then imposes costs on the entire health care system. That same person's choice not to purchase broccoli does not impose costs on society.

Another writes:

As a lawyer, I believe there are genuinely held ideological objections to the notion that the U.S. population should have universal health care, but I submit that there is no legitimate argument that the Commerce Clause does not empower Congress to regulate the direct payment of health care costs – – an industry equal to an estimated 1/6th of the U.S. economy and a line item cost that is factored into the overwhelming majority of every product and service provided by businesses and service firms throughout the country. The pages of arguments against HCR's constitutionality based on notions of a "slippery slope" to a Congressional dictatorship and/or a "parade of horribles" that the federal government could force you to "eat your broccoli" are logically and legally incorrect. But that point has been extensively set forth on your site (and others).

What I think is the interesting and overlooked point is that this HCR "constitutional" debate only exists because the Obama administration chose in legislative arguments and bill drafting to characterize the enforcement mechanism as a "penalty," and did not dare use the word "tax." No one disputes that the federal government's taxing authority would allow it to tax individuals who did not purchase health insurance (or to issue a "tax credit" to those who did). And if HRC was presented as an issue of the government's taxing authority, there would be no constitutional question. None at all.

On that point, in the article you posted, Robert Levy (Cato Institute) quickly and early dismisses the taxing authority basis for HRC, arguing that "[t]he Taxing Power rationale hasn’t garnered support from any court – principally because the penalty was neither intended nor structured as a tax." Notably, he does not, and could not (plausibly), argue that HRC was not perfectly "legal" under the taxing authority of Congress.

Now, despite Mr. Levy's quick dismissal, it is not clear that HCR's enforcement mechanism is not a tax, and the Obama administration has argued vigorously in courts that it is a tax. But, in the end, what is clear is that the ongoing and voluminous debate about whether Congress had the power to enact HCR, and whether the U.S. (like all other Western countries) could democratically vote to have universal health care, only exists because it was politically impossible in the current Republican environment to use the word "tax." If HCR had said a "tax" would be imposed, instead of a "penalty," this issue would never be debated, much less a greatly anticipated Supreme Court ruling on the Commerce Clause.

So, at bottom, this HRC "debate," like the last threatened government shut down, and the debt ceiling crisis, is really the product of the Republican lock-step insistence that there be no tax increases or elimination of tax deductions – no matter the merit of the position. And, again, this is not about purity on tax issues. Republicans have effectively captured the tax issue as a tremendously effective tool to enact or block a score of non-tax ideological issues. In this case, it has been to complicate and potentially block a universal healthcare bill. But there is no "constitutional" reason that the U.S. could not have universal health care.